Trump makes another pitch to the Court of Appeals about immunity in election cases

Lawyers for former President Donald J. Trump filed their final written request Tuesday with a federal appeals court to grant Mr. Trump immunity from charges of conspiring to overturn the 2020 election, arguing that the charges should be dismissed because it results from actions he has taken. while he was in the White House.

The Archive of 41 pages at the U.S. Court of Appeals for the District of Columbia Circuit was the final step before the defense and prosecution are scheduled to discuss the matter before a three-judge panel next Tuesday.

The dispute over immunity is the single most important aspect of the election interference case, touching not only on new questions of law but also on the resulting issues of timing. The case is due to be heard in Federal District Court in Washington in early March, but has been put on hold until Mr. Trump’s efforts to have the charges dropped on immunity grounds are resolved.

In their filing with the appeals court, Mr. Trump’s lawyers reiterated some of the arguments they had made in previous comments. For example, they argued that a long history of presidents not being charged with crimes indicated that they all enjoyed immunity. They also said that prosecuting Mr. Trump now could set off a chain reaction with other presidents being indicted.

“The 234-year unbroken tradition of not prosecuting presidents for official actions, despite vociferous calls to do so from across the political spectrum, provides powerful evidence of that,” wrote D. John Sauer, a lawyer who has handled Mr. Trump’s appeals . of the idea of ​​executive immunity.

Mr. Sauer added: “The likelihood of an explosive growth in politically motivated prosecutions and future cycles of impeachment are far more threatening and crippling to the presidency than the threat of civil liability.”

Mr. Trump’s lawyers made another, even bolder argument: that because he was acquitted by the Senate on January 6, 2021 during his second impeachment for inciting the Capitol insurrection, he should not face a criminal court in the election could be tried. interference case.

But both legal experts and some of the senators who acquitted Trump disagree with that view — not least because the federal charges he faces are not analogous to those he faced during his impeachment.

The issue of Mr. Trump’s immunity claims is legally significant because the question of whether former presidents can be held criminally liable for things they did while in office has not been tested in court. Mr. Trump is the first former president to be charged with crimes.

But the appeal of the immunity issue hinged on more than whether Mr. Trump should ultimately stand trial on the election charges. The separate but equally critical question of when the trial should take place was also addressed.

Prosecutors in the office of the special counsel, Jack Smith, have been trying for weeks to keep the trial on track, arguing that the public has a huge interest in a speedy prosecution of Mr. Trump, the Republican Party’s leading candidate for presidency.

Mr. Trump’s lawyers, moving in the opposite direction, have used every means possible to delay the case, hoping to delay a trial until after the 2024 election is decided. If that were to happen and Mr. Trump were to win, he would have the power to simply order that the charges against him be dropped.

The immunity issue is being considered by Judge Karen L. Henderson, who was appointed by President George HW Bush, and by Judges Florence Y. Pan and J. Michelle Childs, who were appointed to the bench by President Biden.

On Tuesday, before Mr. Trump’s court papers were filed, the justices told both sides in the case to be prepared at next week’s hearing to discuss issues raised in several friend-of-the-court cases notes that have been submitted.

One of the documents argued that the issue of immunity should never have been the subject of an immediate appeal but should only have been raised if Mr. Trump were convicted. Another alleged that Mr. Smith was improperly appointed to the role of special prosecutor and that he did not have the “authority to conduct the underlying prosecution.”

Fearing that a lengthy appeal would not bring the case to a jury, Mr. Smith made an unusual request to the Supreme Court last month: He asked the justices to appear before the appeals court and hear the case first.

Although the judges denied his request, they will likely hear the case again after the appeals court makes a decision.